Enter the 'ghost lawyers' and 'barefoot lawyers'

Winahyo Soekanto, Lawyer, Jakarta

The current buzzword in campaigns for the protection of consumers rights -- be they consumers of products and services or consumers of arbitrary public policies -- is class action. The term is fast gaining popularity, especially since the recent suit filed by Jakarta-based NGOs representing flood victims against Governor Sutiyoso over poor disaster preparedness in the capital.

Among the 30 plaintiffs are the Indonesian Corruption Watch, the Indonesian Center for Environmental Law, the Urban Poor Consortium, the Indonesian Forum for the Environment, the Jakarta Pedicab Association and the Indonesian Consumers Foundation.

Being accused of failing to take adequate measures to anticipate the disaster, Sutiyoso has gone on the record as not only regretting the suit but also questioning its suitability. After all, he argued, the disaster struck because of the weather. He has also accused the NGOs of using the flood victims to further their own interests.

A class action is a legal suit filed by a group of class representatives whose interests have also been harmed, on behalf of a greater number of victims (known as class members). Not many such suits have taken place here in the past. In the past, any legal moves against authorities would usually cause the public to just shrug because of the "David vs. Goliath" image such actions elicited.

More recently, however, there have been cases where David prevailed. One such success story concerned the class action filed by Slamet Tompel and Gatot Sudarto, residents of Karang Anyar, Taman Sari, Central Jakarta. The plaintiffs represented 43 other residents who worked as scavengers and whose dwellings were demolished by the Jakarta administration.

Slamet and Gatot were not lawyers, and their decision to undertake the legal move earned them the title "ghost lawyers"; but they won the class action against the Jakarta governor, the Central Jakarta mayor, PT Kereta Api Railway Company and the Mobile Brigade of the National Police.

Another success story unfolded when an alliance of consumer rights advocates, the Committee for the Advocacy Against the Price Increase of LPG (KAPAK), led by the Indonesian Consumers Foundation (YLKI), won its class action against Pertamina on Oct. 9, 2001. The Central Jakarta District Court ordered the state oil company to revoke its arbitrary decision to increase the price of Elpiji gas. The court also ordered the company to refund the difference in the money that the consumers had paid for the gas.

Newsweek, in its March 4 edition, described a "legal revolution" in Liushugouzi village in Shandong province, China. Here, two farmers with limited knowledge of and experience with the legal machinery defended fellow farmers who were beaten up by thugs paid by the local administration to deal with late taxpayers. The two farmers filed a suit for compensation for their friends' injuries, and earned the nickname "barefoot lawyers" from the weekly.

Why is class action gaining importance? Because the cases that prompted them have usually been poorly matched fights.

There has always been an imbalance in the bargaining power of consumers and producers because of the nature of the relationship between the two, characterized by the almost unquestioning trust (known as fiduciary relationship) consumers place in producers.

When one goes to a supermarket and buys a product, one does not usually check whether its weight is really 500 grams, whether it really is halal and free from additives, or whether it really cleans one's clothes better than other products. One simply trusts the producers' claims.

Given the increasing sophistication of the manufacturing process, consumers are finding it even more difficult to investigate whether those claims have any truth. Thus the "David vs. Goliath" image.

Class action suits reflect people's growing confidence in applying pressure on producers or policy makers found to have neglected consumers' rights. It is a new venue for the public to defend their rights. People are beginning to view class actions as a part of the legal system that might be effective enough to fight arbitrary actions by producers or officials.

Class action suits are provided through Chapter 1365 of the Civil Code, which stipulates compensation by any party whose actions cause a loss to another party. The other facilities for the suits are in Law 14/1970 on the judiciary, Law No. 23/1997 on environmental protection, and Law No. 8/1999 on consumer rights.

Supporters of class action suits are usually activists who act as society advocates and public interest lawyers. They usually believe that class action suits represent access to justice for members of the public. Regrettably, only a few commercial lawyers have expressed an interest in becoming public interest lawyers.

How does one go about filing a class action? Generally, a class action suit should comply with a number of principles, the first of which is "numerosity" -- the number of people attempting legal action over the same subject should be so great that it would be impractical and inefficient for the case to be filed individually.

Second, class action representatives and members must share the same facts and legal footing.

Third, there has to be a typicality of claim and argument. They must have the same interests in the suit.

Finally, there has to be an adequacy of representation, meaning that class representatives must honestly and justly and able to protect the interests of those that they represent. If those principles are adhered to, accusations that promoters of class actions, such as NGO activists, are only seeking to further their own interests could be deflected and the superiority of class action suits could materialize.

For class action suits are indeed superior in certain terms: they are more cost-effective, they lessen the burden on the court of having to try the same case over and over if it were filed individually and they offer class action members mutual support. Besides, class action suits permit consumers to air their opinions or complaints about their right to honest and accurate information.

Yet the major glitch is that class action suits are often blocked by parties arguing that there is no complete legal cover for consumers pressing for their rights through such a mechanism. Our law enforcers often bicker over the fact that only the law on environmental protection has provisions for class actions, while the law on consumers' rights does not.

The Supreme Court has reportedly taken steps to fill the legal void, planning to issue a Supreme Court decree on class actions to guide judges trying such suits. Our legislators should then draft a law on class actions -- thus preventing years of hard work by advocates of the Indonesian Consumers Foundation from going down the drain because of the absence of adequate legal cover.

Judges would also do well to heed the precedence set by the Central Jakarta District Court, which backed the Elpiji consumers' suit against Pertamina.

Then one day class action suits will really be a means for the public and consumers to improve their bargaining position before producers and policy makers.